Forfeiture terminates a lease where the tenant has breached a lease condition and the landlord exercises the right of re-entry reserved in the forfeiture clause. But the law has long recognised that the landlord's interest in terminating the lease may be disproportionate to the tenant's interest in retaining it — particularly where the tenant's breach is a temporary failure to pay rent, or a minor breach that has since been remedied. The court's jurisdiction to grant relief from forfeiture is primarily statutory (Common Law Procedure Act 1852; Judicature Act 1873 as preserved in the Senior Courts Act 1981 s.38; County Courts Act 1984 s.138-140; LPA 1925 s.146(2) and (4)) and in part equitable.
Relief for Rent Arrears — Statutory Right and the 6-Month Rule
Relief from forfeiture for non-payment of rent is governed by statute: (a) County court: County Courts Act 1984 s.138 gives the tenant an automatic right to relief if they pay all arrears and costs before the possession order takes effect; if possession has already been given to the landlord, the tenant may apply within 6 months for relief (s.138(9A)); (b) High Court: under the Senior Courts Act 1981 s.38 and the inherent jurisdiction, the court can grant relief in High Court proceedings at any time before the landlord has re-let the premises or made them permanently incapable of restoration; (c) The 6-month period: in practice, the county court 6-month window from the date of possession is the key deadline; the courts apply it strictly — applications after 6 months will almost certainly be refused; (d) Peaceable re-entry cases: where the landlord has forfeited by peaceable re-entry (without court proceedings), the tenant may apply in the county court for relief under Billson v Residential Apartments [1992] — there is no fixed 6-month rule but the longer the delay, the more likely the court is to refuse; courts have refused relief more than 6 months after peaceable re-entry; (e) Payment of arrears: the court will grant relief for rent arrears where the tenant pays the full arrears plus the landlord's legal costs; a tenant who clears the arrears at the last minute but has been a persistent late payer may still obtain relief, although courts increasingly apply the exceptional circumstances test to habitual defaulters; (f) Conditions: the court typically makes relief conditional on payment of arrears within a set period (often 14-28 days); failure to comply with the condition means relief is refused and the forfeiture stands.
- County court automatic right: tenant who pays all arrears and costs before a possession order takes effect is entitled to relief as of right under CCA 1984 s.138
- 6-month window: after possession is given to the landlord, the tenant has 6 months to apply; after this the court will almost always refuse relief
- Peaceable re-entry: no fixed 6-month rule — but courts treat prolonged delay as a strong factor against relief; apply as soon as possible
- Full payment required: relief is conditional on payment of all arrears, interest, and the landlord's reasonable legal costs; court sets a compliance deadline
- Habitual default: persistent late payment is a factor weighing against relief — courts are less sympathetic to tenants who have repeatedly defaulted
Relief for Non-Rent Breaches — s.146(2) LPA 1925
Where forfeiture is for a breach other than non-payment of rent, the right to apply for relief arises under LPA 1925 s.146(2): (a) Timing of application: the tenant may apply for relief 'while the lessor is proceeding' under s.146 — i.e. after the s.146 notice has been served but before the landlord has actually re-entered or obtained a court order, or very shortly after; after the landlord has re-entered and the lease has been determined, the court retains an equitable jurisdiction to grant relief but the hurdle is higher; (b) Discretion: unlike rent arrears (where relief is almost automatic on payment), relief for non-rent breaches is entirely at the court's discretion; the court weighs: the seriousness and nature of the breach; whether the breach is remediable and whether it has been remedied; the value of the tenant's interest compared to the benefit to the landlord of forfeiture; the conduct of the parties; any impact on third parties (sub-tenants, employees); (c) Irremediable breaches: a breach is 'irremediable' where it cannot be put right — for example, carrying out unauthorised alterations that cannot be reversed, subletting in breach of covenant (once done), or conduct that permanently damages the landlord's reputation; for irremediable breaches, relief may still be granted in exceptional cases but is much harder to obtain; (d) Breach of user covenant: operating the premises for an unauthorised use in breach of a user covenant may be irremediable if the landlord's position has been permanently affected; (e) Conditions of relief: the court will typically order the tenant to remedy the breach (if remediable), pay the landlord's costs, and comply with the lease going forward as conditions of relief.
- s.146(2) jurisdiction: tenant may apply while the landlord is 'proceeding' under s.146 — apply before or shortly after re-entry for the best chance
- Broad court discretion: seriousness of breach, whether remedied, value of tenant's interest, conduct of parties — all weighed; less automatic than rent arrears
- Irremediable breaches: subletting without consent, unlawful structural alterations, or permanent reputation damage may be irremediable — relief harder but not impossible
- Conditions of relief: typically remedy the breach, pay costs, comply going forward; failure to comply with court conditions results in refusal of relief
- Apply promptly: delay after re-entry is a strong factor against relief for non-rent breaches — the court is more sympathetic where the application is prompt
Sub-Tenant and Mortgagee Rights — s.146(4) LPA 1925
The law specifically protects sub-tenants and mortgagees of the forfeited lease: (a) Sub-tenant's right to apply: under LPA 1925 s.146(4), a sub-tenant or under-lessee can apply for relief from forfeiture independently of the head-tenant; the sub-tenant can apply even where the head-tenant has not applied or has had their application refused; (b) Nature of relief for sub-tenants: the court can grant a new lease to the sub-tenant (replacing the forfeited head-lease) with the same terms but for a term not exceeding the sub-tenancy; the effect is that the sub-tenant becomes the direct tenant of the landlord; (c) Mortgagees: a mortgagee of the forfeited lease has a similar right to apply for relief; the mortgagee can apply for relief to preserve their security and may be granted a new lease on terms; (d) Landlord's position: even where the head-tenant has committed a serious or irremediable breach and the landlord has validly forfeited, the sub-tenant or mortgagee may still obtain relief; this is a critical consideration for any landlord planning to forfeit — they should check for sub-tenancies and registered charges on the lease before proceeding; (e) Notice to sub-tenants and mortgagees: landlords initiating forfeiture proceedings should serve notice on any known sub-tenants and mortgagees to avoid criticism for failing to notify them of their right to apply for relief.
- s.146(4): sub-tenant or mortgagee can apply independently even if the head-tenant does not — the landlord may end up with a new direct relationship with the sub-tenant
- New lease: court can grant the sub-tenant a new lease on the same terms, for a term not exceeding the sub-tenancy period — sub-tenant becomes the landlord's direct tenant
- Mortgagee protection: a mortgagee whose security would be destroyed by forfeiture can apply for relief and be granted a new lease to preserve their charge
- Check for sub-tenancies: before forfeiting, search the lease register and local knowledge for any sub-tenancies — a successful forfeiture may be immediately undone by a sub-tenant's relief application
- Notify known incumbrancers: serve notice on known sub-tenants and mortgagees at the time of forfeiture proceedings — courts look unfavourably on landlords who proceed without notifying interested parties
Practical Guidance for Landlords — Managing the Forfeiture and Relief Process
Effective management of a forfeiture and potential relief application requires: (a) Evidence preservation: document the arrears/breach in full; retain all rent demands, lease documents, s.146 notices (if applicable), and correspondence; photograph the state of the premises; (b) Do not waive: after the breach arises, do not accept rent or take any step inconsistent with forfeiture until you have decided whether to forfeit; once waived, the right to forfeit for that breach is lost; (c) Consider alternatives to forfeiture: where the tenant is in financial difficulty, a commercial rent arrears recovery (CRAR) action (taking control of goods under the Tribunals, Courts and Enforcement Act 2007) may be a faster route to recovering arrears without forfeiting a valuable lease; debt judgment; guarantor demand; (d) Do not re-let until clear: do not re-let the premises or enter into a new lease until the tenant's right to apply for relief has been extinguished (6 months after possession for county court proceedings, or after a court has confirmed forfeiture is final); re-letting before this point may give the original tenant a claim against you; (e) After relief is refused or the time limit passes: once no relief application is possible, you can re-let freely; any goods abandoned by the tenant can be dealt with under the Torts (Interference with Goods) Act 1977 after proper notice.
- No waiver: do not accept rent or act inconsistently with forfeiture once a breach has arisen — waiver destroys the right to forfeit for that breach
- CRAR alternative: commercial rent arrears recovery (CRAR) allows seizure of tenant's goods on the premises to satisfy rent — a faster route to recovering arrears without losing the lease
- Do not re-let prematurely: wait until the 6-month window closes (or court confirmation) before re-letting; premature re-letting gives the tenant a damages claim
- Guarantor: if the lease has a guarantor or AGA, claim against them simultaneously with or instead of forfeiture — this may be commercially preferable to terminating a valuable lease
- Relief refused or time expired: only after this point can you treat the forfeiture as permanent and re-let, sell, or redevelop the property
Frequently asked questions
How long does a tenant have to apply for relief from forfeiture after the landlord re-enters?+
For forfeiture by court proceedings for rent arrears, the tenant has 6 months from the date possession is given to the landlord to apply for relief in the county court (County Courts Act 1984 s.138(9A)). For forfeiture by peaceable re-entry (without court proceedings), there is no fixed statutory period, but courts have applied the 6-month rule by analogy — the longer the delay, the more likely relief will be refused. For non-rent breaches under s.146 LPA 1925, there is no fixed time limit but the application should be made as soon as possible after the landlord's re-entry; significant delay is treated as a strong factor against granting relief.
Can the court grant relief from forfeiture even if the breach is serious?+
Yes — for rent arrears, relief is almost automatic if the tenant pays all arrears and costs, regardless of the amount or the period of default. For other breaches, the court has full discretion and will take into account the seriousness and nature of the breach, whether it has been remedied, the value of the tenant's interest in the lease, and the conduct of both parties. Courts have granted relief even for serious breaches — including unlicensed subletting and unauthorised user — where the tenant's interest was substantial and the breach was remedied. However, where the breach is irremediable (e.g. illegal or immoral use that permanently affects the landlord's reputation) or where the tenant has repeatedly defaulted, the court may refuse relief entirely.
As a sub-tenant, what are my rights if the head-landlord forfeits my landlord's lease?+
As a sub-tenant, you have an independent right to apply for relief from forfeiture under LPA 1925 s.146(4), regardless of whether the head-tenant applies. The court can grant you a new direct tenancy with the head-landlord on the same terms as your sub-tenancy and for a term not exceeding the original sub-tenancy. This means your occupation is protected even if the head-tenant's lease is validly forfeited. You should apply for relief as soon as you become aware of the forfeiture — ideally before the head-landlord re-lets the premises. Inform your solicitor immediately if you receive notice that the head-landlord is forfeiting the head-lease.
What is the difference between peaceable re-entry and forfeiture by court proceedings?+
Both are routes by which a landlord exercises the right to forfeit a commercial lease. Peaceable re-entry is done without a court order — the landlord physically re-takes the premises (typically by changing the locks outside business hours when the premises are empty). It is faster and cheaper but carries significant risks: criminal liability if anyone is present, civil liability if not executed precisely, and the complication that the tenant's right to apply for relief runs from the date of re-entry. Forfeiture by court proceedings involves issuing a claim in the county or High Court for possession; it is slower and more expensive but gives the landlord legal certainty and the court's authority. For disputed forfeiture, where the tenant is likely to resist or the premises are occupied, court proceedings are generally preferable.